The Empty Building

Q: In New York City, I tripped and fell on a sidewalk.  At the time of the accident, the abutting property was being renovated.  It looked like no one was living there, although I am not sure.

A: Under section 7-210 of the NYC Administrative Code, tort liability for injuries resulting from defective sidewalks generally is shifted from the City to abutting property owners, unless the abutting property is a one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes.

The exception for such a residential real property is out of recognition of the fact that an owner who resides at such a property often has limited resources.  It has been deemed not appropriate to expose such an owner to exclusive liability with respect to sidewalk maintenance and repair

To determine whether the property in fact falls within this exception, one type of evidence is the Department of Finance building classification, which shows the building’s tax status.  Another is the certificate of occupancy, which shows the legal use of the structure.  Nevertheless, at bottom, the issue is one of how the property is actually used.  Moreover, some uses of a property can be deemed to be incidental to its residential use – e.g. storing some work equipment, or use of the basement as an office space.

Generally, both the City and the property owner are sued.  The owner’s attorney may argue that even a property that is zoned for commercial use can be actually used as a residential property.  The City’s attorney may argue the converse – that even a property that is zoned for residential use can be actually used as a commercial property.  As the defendants destroy each other, you get to pick up the pieces.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

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